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Big biz Texas egg producers get a coddling pass from appellate court

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Back in 2010, the Center for Food Safety sought a declaratory judgment seeking to force the Texas Department of State Health Services to enforce a state law that lays out the sanitary conditions required of egg producers.

There was an October 2011 press statement on the Center for Food Safety’s website that said, “plaintiffs include residents who live near an egg producing plant run by the nation's largest egg producer, Cal-Maine Inc., where more than one million chickens are crammed into cages so small that the hens cannot even spread their wings.

“The facility is also packed full of live birds, many in various stages of illness and disease, covered in feces, and caged alongside dead, decaying corpses. These conditions dramatically increase the likelihood that eggs will carry diseases such as salmonella, and cause food-borne illness. Eggs have already been recalled for contamination from facilities with conditions like those found at Cal-Maine.”

Okay, that sounds disgusting.

It went on to say the trial court judge ruled that State Health Services had no mandatory duty to act, and the ruling was being appealed by the Center for Food Safety. Fast forward to this week:

On Wednesday, Feb. 19, the Third District Court of Appeals in Austin upheld the trial court rulings. Not surprisingly, the Center for Food Safety didn’t bother to announce its loss on its website.

Likewise, the Texas media passed on doing a story. I get it. Typically, our short-handed media organizations don’t give a second look to court decisions that do not involve a reversal. However, that does cause news reporters to miss out on (or be spared?) the spectacularly tortured logic that goes into some of these affirmations.

The conundrum in this case is that both the trial judge and the Third District opinion of Justice Melissa Goodwin acknowledge the defendants--State Health Services and its director--“have the authority to inspect egg farms since a potential outbreak could affect human health.”

It's just that, you know, they don’t have to. So, what’s the problem? Why shouldn’t State Health Services use its AWE-THOR-ITY!?

Goodwin agreed with the lower court that the Texas Health & Safety Code statute that this plaintiff nonprofit relied upon was intended to prevent animal cruelty. She insists this is a difference with substance and points to the taxonomy of the law to support this logic:

Health and Safety Code, Title 10 (Health and Safety of Animals), Chapter 821 (Treatment and Disposition of Animals), Subchapter A (Treatment of Animals).

The specific subsection the plaintiff wants enforced is 821.003; this lists all the “shall immediately place the birds in coops,” and “shall keep clean water and suitable food,” and “shall keep coops … clean,” and other mandatory sounding language.

The emphasis here, according to the courts, is that since this isn't a "health law," but an "animal cruelty law" then State Health Services’ authority is discretionary.

If you just got lost, you're not alone.

Scott Hendler of Hendler Law in Austin, arguing for the nonprofit, said “shall” in 821.003 means “shall,” and if the egg producers have to follow these rules, State Health Services has to make sure they do.

The trial court and Goodwin disagreed, saying, “the primary enforcement mechanism … is through peace officers and animal control officers.”

This is a pass-the-buck move. Basically, the court is saying, “Don’t call State Health Services, call your local police.”

This is a legislatively structured Catch-22. State Health Services has authority it doesn’t have to use. But law enforcement won't "enforce" without a dossier that establishes probable cause. And who provides the dossier? What happens if the agency decides never to use its AWESOME-THOR-IT-EE?

Goodwin paraphrases Hendler and comes up with her own answer:

“Appellants argue that an officer’s authority to enforce section 821.003 is dependent on the receipt of information from DSHS. Appellants urge that, because DSHS has refused to investigate egg production facilities and report purported violations to appropriate officers, the officers are unaware of violations and unable to exercise their enforcement authority.
“Thus appellants contend there is no current enforcement of section 821.003, ‘egg producers continue to freely operate in violation of the law,’ and, if DSHS does not have a duty to enforce the statute, ‘no agency in Texas has the duty to ensure basic sanitary conditions in Texas egg producing facilities.’”

That was Goodwin echoing Hendler. So, what’s her answer?

“We also note that other governmental entities are authorized to inspect egg production facilities. See, e.g., 21 C.F.R. 118.12 (authorizing the federal Food and Drug Administration to inspect egg production establishments) … "

Catch that? If State Health Services doesn’t want to do its job, the FDA also has AWESOME SAUCE-N-THOR-AH-TEE!

Let me guess, a likely FDA response would be it doesn't have the resources to investigate or enforce. Has Goodwin taken a look at the FDA’s budget lately?

Oh, right. That’s not her job.

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